Blehein -v- St. John of God Hospital & anor,  IESC 73 (2001)
|Party Name:||Blehein, St. John of God Hospital & anor|
|Judge:||Denham J. / Murphy J. / McGuinness J.|
JUDGMENT BY: Denham J.THE SUPREME COURTDenham J.Murphy J. 329/00Geoghegan J.BETWEEN/LOUIS BLEHEIN APPLICANT/APPELLANTandST. JOHN OF GOD HOSPITAL RESPONDENTandTHE ATTORNEY GENERAL NOTICE PARTYJudgment of Mrs. Justice Denham delivered on the 31st day of July 2001.1. An AppealLouis Blehein, the applicant/appellant, hereinafter referred to as the applicant, has brought an appeal against judgments and orders of the High Court (O'Sullivan J.). Judgment was delivered in part on 6th day of July, 2000 and completed on 18th day of July, 2000. The orders were made on 18th day of July, 2000 and perfected on 21st day of August, 2000. They were adjusted by consent on 27th day of November, 2000 and the adjusted orders were perfected on the 7th day of December, 2000.The applicant had sought the leave of the High Court pursuant to section 260(1) of the Mental Treatment Act, 1945, as amended, to bring proceedings against the respondent in connection with the exercise of its powers and duties under the Mental Treatment Act, 1945. Theapplicant submitted that he was detained against his will on foot of orders made by or on behalf of the respondent for three separate periods in 1984, 1987 and 1991. The applicant claims declarations that the respondent acted in breach of natural justice and in breach of constitutional justice and he also claims damages.In a judgment delivered on 6th July, 2000, the applicant's submissions were treated under nine headings by the High Court. In relation to eight of the nine headings the High Court held that leave should not be granted to institute proceedings as the applicant had not established substantial grounds for contending that the respondent acted either in bad faith or without reasonable care. On the ninth ground the applicant had submitted that the respondent was not designated by law as a place of detention. The High Court granted an opportunity to the respondent to produce a further affidavit. The learned High Court judge held:"With the exception, therefore, of the point in relation to the status of the [respondent] my view is that the [applicant] has not established substantial grounds for contending that the [respondent] acted either in bad faith or without reasonable care and I would refuse him leave to bring the intended proceedings. For the present, however, the matter should be adjourned and no final order will be made."On 27th November, 2000 the applicant was given leave to institute proceedings against the respondent hospital challenging the lawfulness of his detention in 1984, 1987 and 1991 onthe ground that, at the material times, the respondent hospital was not designated by law as a place of detention. The applicant was also given liberty to challenge the constitutionality of section 260 of the Mental Treatment Act, 1945, as amended.2. LawThe applicant was before the High Court on foot of a motion under s. 260 (1) of the Mental Treatment Act, 1945 which states:"No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care."3. Grounds of AppealThe applicant has appealed against the judgments and orders of the High Court. The grounds of the appeal are:"1. That the Learned High Court Judge did misdirect himself in law:-(a) In acting in excess of jurisdiction by denying access to justice to the Applicant, the provisions of section 260 notwithstanding;(b) In failing to apply a literal construction to the provisions of the Act in accordance with well established prescriptive ratio decidendi;(c) By interpreting the Act in a manner which amounted to enacting that which the Oireachtas did not;(d) In failing to apply the canons of construction of post-1937 legislation to the provisions of the Act;(e) In holding that the Respondent was not obliged to look to the validity of the medical certificates in Form No. 7 of the Act prior to acting upon them;(f) In holding that the principles of procedural justice guaranteed by the Constitution may validly be vitiated by a statutory provision;(g) In holding that in this State the Legislature is Sovereign.2. That the learned High Court Judge misdirected himself in law and in fact and upon the evidence and upon the weight of the evidence as follows:(a) In holding, contrary to that which is patent, that Form No. 7 of the Act contains an application for an Order for detention;(b) In holding that the inverted procedures, relating to the events of the 25th day of February 1984, described in the Affidavit of Kevin Blehein (at Exhibit "LB3" in the grounding Affidavit herein) constituted a lawful 'examination' for the purposes of section 185 of the Act;(c) In holding that the Order in Form No. 7 dated the 26th February 1984 was made on that date, evidence to the contrary notwithstanding;(d) In holding that the predetermination and wrong reasons disclosed by Dr. Murphy's contemporaneous letters were not material to vitiating the accompanying certificates issued by him in Form No. 7 of the Act in 1984, in 1987 and in 1991;(e) In holding that the Respondent was lawfully entitled to act upon invalid medical certificates;(f) That, the provisions of the Constitution of Ireland notwithstanding, the condition of being suspected of a mental illness (if there is such) justifies a Kangaroo court;(g) That there was evidence before his Lordship which warranted reversing the statutory and common law presumption of sanity;(h) In holding that approval of an institution for the reception of patients pursuant to section 158 of the Act constitutes a sufficient designation of that institution as a place of detention for the purposes of Article 40.4.1° of the Constitution of Ireland;(i) In declining to accept that marital disharmony, and the unlawful interference of the State police therein, was the only reason for the incarceration of the Applicant in the Respondent's institution the uncontroverted evidence therein notwithstanding.(j) In holding that the evidence herein did not constitute substantial grounds for contending that the Respondent acted without reasonable care or in bad faith."4. ApplicationOn 25th June, 2001 the applicant's appeal against the orders and judgment of the High Court (O'Sullivan J.) came on for hearing before the Supreme Court. There was no issue as to the constitutionality of s.260 of the Mental Treatment Act, 1945 before the Court. While leave has been granted by the High Court to the applicant to amend the plenary summons to include the challenge to the constitutionality of the section this has not yet been done.At the commencement of the hearing the applicant requested that Murphy J. withdraw from the appeal. He submitted that Murphy J. was a judge in a previous case where he had exercised the same law against the applicant. He submitted that in this case the issue was the jurisdiction conferred by s. 260 of the Mental Treatment Act, 1945. He submitted that a judge who has previously exercised the same jurisdiction in the same manner could reasonably be expected to be predisposed to uphold the jurisdiction. He submitted that his appeal would commence with the argument that the High Court judge had exceeded his jurisdiction. He submitted that he would be arguing that s. 260 is not a jurisdiction which the court may exercise having regard to its primary function of administering justice, that to deny access to the court is to deny justice.The applicant submitted that if a judge has operated s. 260 of the Mental Treatment Act, 1945 in the past he will operate it in the future. He argued that any judge who has operated the section should not sit. He argued that if a judge has given a judgment refusing leave to issue proceedings in any previous case where s.260 was challenged he or she would do the same again.Counsel for the hospital, noting that Geoghegan J. had dealt with a previous application under s. 260 whilst a judge of the High Court and Murphy J. had heard a previous, different, application under s. 260 by the applicant, submitted that the matter should proceed before the court.Counsel for the Attorney General informed the Court that he had been made a notice party after the judgment of O'Sullivan J. on 6th July, 2000. At a late stage the applicant had canvassed the unconstitutionality of s. 260. Pursuant to the order of the High Court the applicant has leave to amend the plenary summons. However, he has not yet instituted proceedings to make this amendment. Counsel submitted that applying logic to the applicant's application it would mean that any Supreme Court Judge who had exercised an appellate function regarding s. 260 would have to withdraw. Similarly, any person who had acted as a High Court judge on any s. 260 application would also have to withdraw. Counsel for the Attorney General pointed out that the Attorney is involved in considerable litigation. It would be inconceivable that if he had suffered an adverse adjudication on a statute that a judge could not sit on a subsequent case relating to that statute. As to the particular situation counsel submitted that unless the Court considered that there had been participation such as ruled a judge out of sitting in this case the Court should allow the matter to proceed.5. DecisionThe procedure where a party asks a judge to disqualify himself was considered by the Chief Justice recently. In Rooney v. Minister for Agriculture  2 I.L.R.M. 37 at pp. 40-41 Keane C.J. stated:"Where one or other party does invite a judge to disqualify himself, the established and prudent practice has been for the judge concerned to disqualify himself if he has any reservations about the matter. On the other hand a judge cannot permit a scrupulous approach by him to be used to permit parties to...
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